Rule of Law: The Modern Formulations
Chapter Twelve
Syllabus topic 1, "National Security, Public Orders and Rule of Law"
Pages 62 to 66 of 657
In one line
After Dicey, the argument moved on from whether the State acts through law to what kind of law it has to be.
In the wording a student can write in an exam: the modern formulations of the rule of law fall into two families. The formal or thin conception, associated with Raz and with Fuller, asks only about the qualities a legal system must have if it is to guide conduct: generality, publicity, prospectivity, clarity, stability, and an independent judiciary to apply it. The substantive or thick conception, associated with the International Commission of Jurists' Delhi Declaration of 1959 and with Lord Bingham, adds requirements of content: that the law must secure human rights and the conditions of a dignified life. Indian constitutional law has adopted the substantive conception.
Why Dicey needed supplementing
Three reasons, and they are the reasons an examiner is testing.
Because a State can comply with Dicey and still be unjust. A statute that authorises detention without trial, published, prospective and applied by ordinary courts, satisfies Dicey's first meaning in form. It does not obviously satisfy anything one would want to call the rule of law. That is the gap the substantive conception exists to fill, and it is the gap this whole paper lives in.
Because Dicey's hostility to discretion is unworkable. A modern administrative State runs on discretion, and the question is how it is confined rather than whether it exists.
Because Dicey's third meaning is a description of England in 1885 and not a proposition of law. India rejected it deliberately when it wrote a bill of rights.
The formal conception: what a legal system must be like
Lon Fuller, The Morality of Law (1964). Fuller argued that law-making is subject to an internal morality, and that a system failing badly enough on any of eight counts is not a legal system at all. His eight failures are: the failure to make rules at all, so that every issue is decided ad hoc; the failure to publicise rules; the abuse of retroactive legislation; the failure to make rules understandable; the enactment of contradictory rules; rules requiring conduct beyond the power of the affected party; frequent change of rules so that a subject cannot orient action by them; and a mismatch between the rules as announced and their actual administration.
Joseph Raz, The Rule of Law and its Virtue (1977). Raz's account is deliberately thin and is often misread. His central claims are that laws should be prospective, open and clear; that laws should be relatively stable; that the making of particular laws should be guided by open, stable, clear and general rules; that the independence of the judiciary must be guaranteed; that the principles of natural justice must be observed; that the courts should have review powers over the implementation of the other principles; that the courts should be easily accessible; and that the discretion of crime-preventing agencies should not be allowed to pervert the law.
Rule of Law: The Modern Formulations
Raz's famous provocation is worth stating exactly because students garble it. He argued that the rule of law is one virtue among others, like the sharpness of a knife, and that a non-democratic legal system may in principle conform to it better than a democratic one. He did not say that such a system is good. His point was that conflating the rule of law with all political good makes the phrase useless as an analytical tool.
Note his last principle. The discretion of the crime-preventing agencies should not be allowed to pervert the law. That is a proposition about exactly the powers this paper studies, and it comes from the thinnest of the modern accounts.
The substantive conception: what the law must contain
The Delhi Declaration, 1959. The International Commission of Jurists held a Congress in New Delhi in 1959, attended by jurists from many countries, and its declaration is the formulation Indian courts and Indian writers most often quote. Its central proposition is that the rule of law is a dynamic concept which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which the individual's legitimate aspirations and dignity may be realised.
Three consequences follow and are worth listing in an answer.
- The rule of law is not only a restraint on the State. It imposes positive obligations: to provide conditions in which people can live decently.
- It has a social and economic content, which is why it fits the Indian Constitution's Part IV so naturally.
- It is dynamic, meaning that its content grows as a society's capacity grows.
Lord Bingham, The Rule of Law (2010). Bingham, formerly Senior Law Lord in the United Kingdom, proposed eight principles, and they are the most usable modern checklist there is.
- The law must be accessible and so far as possible intelligible, clear and predictable.
- Questions of legal right and liability should ordinarily be resolved by application of the law and not by the exercise of discretion.
- The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
- Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.
- The law must afford adequate protection of fundamental human rights.
- Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.
- Adjudicative procedures provided by the state should be fair.
- The state must comply with its obligations in international law.
Rule of Law: The Modern Formulations
Principle five is the substantive claim, and Bingham defended it directly against Raz. Principle four is the whole of administrative law in one sentence, and it is the standard against which every discretionary power in this book should be tested.
A worked example: the two conceptions applied to this paper's subject matter
Take the National Security Act 1980 and ask what each conception says.
On the formal conception it does well. The Act is published, prospective and general. The grounds are stated. The procedure is laid down. The courts retain review powers, which is Raz's sixth principle, and the detenu can reach a court, which is his seventh.
On the formal conception it does badly in one specific way. Raz's last principle is that the discretion of the crime-preventing agencies should not be allowed to pervert the law. A power to imprison for three months on suspicion, exercised by the same executive that would otherwise have to prosecute, is exactly the discretion he had in mind.
On the substantive conception it does badly. Bingham's second principle is that questions of legal right and liability should ordinarily be resolved by the application of the law rather than by the exercise of discretion, and his seventh is that adjudicative procedures should be fair. A detention order resolves the most important question of liberty there is by discretion, and the Advisory Board's procedure excludes a lawyer.
That is a complete answer to MU's question about the rule of law and national security, and it can be written in three paragraphs.
Distinctions
| Formal, thin | Substantive, thick | |
|---|---|---|
| Chief exponents | Fuller, Raz | Delhi Declaration 1959, Bingham |
| Asks | is the law capable of guiding conduct? | does the law protect the right things? |
| Content of law | not its concern | fundamental rights and dignified conditions |
| Strength | analytically clean; can criticise a system on its own terms | matches what most people mean by the phrase |
| Weakness | a wicked but well-drafted law passes | risks becoming a name for everything good |
| Indian position | necessary but not sufficient | adopted, through article 14 and the basic structure |
What it does NOT mean
Raz was not defending dictatorship. He was distinguishing the rule of law from democracy and from justice, so that each can be assessed separately.
The Delhi Declaration is not a treaty. It is the statement of a Congress of jurists, and it binds nobody. Its authority is persuasive, and it is quoted so often in India because it matches the Constitution's own design.
Rule of Law: The Modern Formulations
Fuller's eight are failures, not commandments. His argument was that a system that fails badly enough on any of them ceases to be a legal system, which is a stronger claim than that it would be a bad one.
Adopting the substantive conception does not dissolve the formal one. Publicity, prospectivity and clarity remain necessary; the substantive account adds to them.
Quick revision
- Two families: formal or thin, and substantive or thick.
- Fuller, The Morality of Law 1964: eight ways to fail to make law, including retroactivity, obscurity, contradiction, constant change, and divergence between rules as announced and as administered.
- Raz 1977: prospective, open, clear, relatively stable law; particular laws guided by general rules; judicial independence; natural justice; review powers; accessible courts; and the discretion of crime-preventing agencies not to pervert the law. The rule of law is one virtue among others.
- Delhi Declaration 1959, International Commission of Jurists: a dynamic concept, safeguarding civil and political rights and establishing the social, economic, educational and cultural conditions for dignity.
- Bingham 2010, eight principles, of which the fifth is adequate protection of fundamental human rights and the fourth is that officials must act in good faith, fairly, for the proper purpose, within their powers and not unreasonably.
- Applied to the NSA: it satisfies the formal account except for Raz's last principle, and it fails the substantive account on Bingham's second and seventh.
Test yourself
1. State the Delhi Declaration's formulation in one sentence. The rule of law is a dynamic concept to be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish the social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realised.
2. Which of Raz's principles bears directly on preventive detention? The last: the discretion of the crime-preventing agencies should not be allowed to pervert the law.
3. What did Raz mean by comparing the rule of law to the sharpness of a knife? That it is one virtue among others and not the sum of political good, so that a system may score well on it and badly on democracy or justice, and each has to be assessed separately.
4. Give Bingham's fourth principle and say why it matters to this paper. Ministers and public officers must exercise their powers in good faith, fairly, for the purpose for which the powers were conferred, without exceeding their limits and not unreasonably. It is the standard against which every discretionary power in this book is tested, including the satisfaction of a detaining authority.
Rule of Law: The Modern Formulations
5. Why is Dicey alone insufficient for an LL.M. answer? Because a State can satisfy his formal requirements while authorising detention without trial, because his hostility to all discretion is unworkable in a modern State, and because his third meaning is a description of England that the Indian Constitution deliberately rejected.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.